Software Patents After Alice: A Long and Sad Tail*
The Supreme Court's ruling in the landmark Alice vs. CLS Bank case has finally given the lower courts some tools they could use to overturn obvious and vague patents, particularly frivolous patents on software. But we haven't won, because bogus patent suits are still being filed. This talk is for anyone who is wondering what the recent decisions mean for small and mid-size entities, how international treaties can impact local policy and what can be done to improve the situation.
The last year’s been very interesting for those of us who have been looking on in horror over the last decade as billions of dollars was spent on frivolous and ridiculously broad software patent litigation. The United States Supreme Court’s ruling in the landmark Alice vs. CLS Bank case has finally given the lower courts some tools they could use to overturn obvious and vague patents. Many judges have found for the defendant and overturned obvious patents. For entities with the time and money to fight bad patents in court, this is fantastic news. As many as four out of five of the software patents on the books in the US might be found invalid under the new doctrines. For everyone else, this is a mixed bag.
There are still several things we need to pay attention to. Patent suits can still be brought. For entities that can’t afford to fight, those disputes will be settled out of court — without the full impact of the court’s updated scope of patentability. Without legislation, it will take twenty years to cycle out the old style of broadly written patents. So, even if the United States Patent and Trade Office fixes their processes immediately we will still have a very long tail to contend with. The new scope of patentability hasn’t been fully tested and there may yet turn out to be gaping loopholes that bad actors may use to undo the progress that has been made. Finally, global entities may use international trade agreements to stop or roll-back the progress made against poorly conceived patents in any country that has signed a sweeping treaty with patent language.
In short, we aren’t done yet. The best way to keep moving forward is for the global community to work together. This talk is for anyone who is wondering what the recent decisions mean for small and mid-size entities, how international treaties can impact local policy and what can be done to improve the situation.
software patents, global, IP strategy, policy
I've spoken at geeky events all over the world; SCALE in Los Angeles, FOSDEM in Brussels, FISL in Porto Alegre Brazil, OSCON in Portland and in Europe, Linuxcon Europe in Edinboro, Dusseldorf and Barcelona, LibrePlanet in Boston, YAPC in Austin, Apachecon and PuppetConf in Potlnad and HOPE in New York City.
Open Invention Network and GNU MediaGoblin
Deb Nicholson wants to make the world a better place with technology and social justice for all. After many years of local political organizing, she started handling outreach for the Free Software Foundation and became an enthusiastic free software activist. She likes talking to developers about software patents, to project maintainers about leadership and to activists about free software. She is currently the Community Outreach Director at the Open Invention Network and the Community Manager at GNU MediaGoblin. She also serves on the board at Open Hatch, a.k.a. Free Software’s Welcoming Committee. She lives with her husband in Cambridge, Massachusetts — surrounded by a community of food nerds and noisy musicians.